If the union decertifies, it could lose Donald Fehr as a negotiator. / Louis Lanzano, AP

by Kevin Allen, USA TODAY Sports

by Kevin Allen, USA TODAY Sports

The NHL Players' Association's next big act in the 76-day-old lockout might be to make itself disappear from a legal perspective.

Friday, the NHLPA will decide whether it wants to accept Commissioner Gary Bettman's offer of a meeting between players and owners without NHL or any NHLPA officials present. But players are also continuing to discuss whether the NHLPA should decertify as a legal strategy.

"You dissolve the union in order to sacrifice your rights under labor law to gain rights under antitrust law, The goal is, in essence, for players to gain leverage by the threat of an antitrust suit," said Gabriel Feldman, an associate professor and director of the Sports Law Program at Tulane.

NHLPA executive director Donald Fehr hasn't said whether players will embrace that strategy, but NFL and NBA players both used that legal maneuver in their last collective bargaining negotiations.

The dissolution of the union can come through a decertification vote, which would require a vote by players. That process would be expected to take 45 to 60 days. Or, dissolution could come through a "disclaimer of interest" by the NHLPA. That simply means that the union itself states it is no longer representing the players in collective bargaining. That can happen immediately.

In an interview with Fan 590 radio in Toronto a week ago, NHL deputy commissioner Bill Daly said of decertification talk: "I wouldn't view an antitrust lawsuit in this case to be anything other than an unfortunate development because I think it's a time-consuming process that would likely lead to the end of the season."

The decision to dissolve the union is not an easy one because of the complications involved.

"It's a risky maneuver, and there isn't a lot of precedent out there to guide us," Feldman said. "It's not a silver bullet for NHL players, but the benefit it might give the players is to allow them to go on the offensive. At this point, their main leverage is the fact they were sticking together. They weren't cracking as a union. But that's a defensive weapon."

An example of a successful use of a disclaimer of interest came from NFL players in 1989 when NFL owners implemented a very restrictive free agency policy, called Plan D. The players continued to play under those rules but sued after dissolving their union. They got a jury verdict in their favor. The jury ruled that the new free agency rules were a violation of antitrust law. They ended up settling the case as part of a new CBA.

After NBA players used dissolution of their union (through disclaimer of interest) last year, they never got far enough along in their case to get a result because they settled.

"My opinion is that (union dissolution) played some role," Feldman said. "It may have been a small role. â?¦ The larger factor in getting a deal done was the calendar. I think neither party was willing to risk losing an entire NBA season. Decertification may have slightly shifted the leverage a bit, so that it may have given players a better deal. But I'm not sure decertification could be credited with getting the deal done."

NFL players were successful at the district court level April 25, persuading U.S. District Court Judge Susan Richard Nelson to end the lockout. Quarterbacks Drew Brees, Peyton Manning and Tom Brady were the lead plaintiffs. However, the circuit court vacated Nelson's ruling in July. The NFL players eventually settled their lawsuit with the league, became a union again and settled in August.

One of the complications of decertification is that once it occurs, Fehr no longer can legally represent players in CBA negotiations.

"It makes a messy situation even messier," Feldman said. "Right now, they are only trying to resolve a CBA. If the PA dissolves the union, then they are trying to settle litigation and negotiate a CBA. You can manage to do that at the same time, but it's tricky to do under labor law."

Feldman recalls the NFL and its players didn't talk for a while after the dissolution of the union because they couldn't agree on what to call the talks.

"The NFL wanted to call it collective bargaining talks and the PA wanted to call it litigation settlement," Feldman said.

Currently, NHL players have agreed to a 50-50 split of hockey-related revenue, a significant concession given they were receiving 57% last season. But the two sides are $182 million apart on transition payments to cover previously signed contracts. Plus, the two sides are far apart on individual contract rights as owners try to alter arbitration and unrestricted free agency qualification. Plus, they want to cap individual contracts at five years.

"Right now, it seems like a game of chicken and neither side is willing to blink," Feldman said. "The risk is we could repeat 2004. â?¦ They called each other's bluff and they blew up the whole season. I think each side may be getting into desperation zone. The players' desperate weapon would be dissolving their union."